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Wednesday, January 30, 2013

Intuitively, I had always believed that the 2nd
Amendment protected my inherent right to keep and bear arms for my own
personal safety; that this right was derived from “natural law” irrespective of
any right to same which may have been specifically granted or denied by either
the United States or any of the States.

Further, I had always believed that since the
federal government was not specifically granted the right to restrict my right
to self-protection, that, in accordance with the enumerated powers of Article
1, Section 8 of the Constitution, the federal government did not have the right
to in any way deny my right to self- protection; that, similarly, since the
right to self-defense is an inherently natural right that no State could
abridge or otherwise deny that right as well.

In light of the recent District of Columbia v
Heller (2008) decision in which SCOTUS struck down DC’s handgun ban as well
as its ban on loaded, operable firearms for DC residents’ self-defense and the McDonald
v City of Chicago case which protected the right to keep and bear arms from
infringement by local governments, my curiosity got the best of me and I
decided to explore the meaning of the 2nd Amendment for myself.

Briefly, this is what the Heller decision
said: “The Second Amendment protects an individual right to possess a firearm
unconnected with service in a militia, and use that arm for traditionally
lawful purposes, such as self-defense within the home” and “that the District’s
ban on handgun possession in the home violates the Second Amendment, as does
its prohibition against rendering any lawful firearm in the home operable for
the purpose of immediate self-defense.” However, SCOTUS tempered its decision
by allowing for “prohibitions against possession of weapons by felons or the
mentally ill” or “carrying of firearms in sensitive places such as schools and
government buildings”. In short, the Court ruled that the Amendment’s prefatory
clause, i.e. “a well-regulated militia being necessary to the security of a
free state”, serves to clarify the operative clause, i.e. “the right of the
people to keep and bear arms, shall not be infringed”, but does not limit or
expand the scope of the operative clause.

The first thing I discovered is that quite apart
from the supercilious and intrusive world of social engineers who continually
advocate a wholesale ban on privately owned guns without any allusion to
constitutional justification, over the years there really has been a serious
and honest difference of opinion among respected constitutional scholars as to
the precise meaning of the 2nd Amendment, a difference which the Heller
and McDonald decisions finally resolved for every American. While Heller
has affirmatively addressed the 2nd Amendment right of citizens to keep and
bear arms who reside within federal territories, the McDonald ruling
extended that right to the local and state levels.

But, first, let’s very briefly highlight some
authoritative, albeit contradictory, case law on this subject before proceeding
further:

1. Barron v Baltimore (1833): held that the
Bill of Rights applies directly to the federal government—not to state
governments. In effect, the court ruled that states could infringe on the Bill
of Rights since the Bill of Rights restrained only the federal government.
(Don’t ask. I didn’t delve deeply into the reasoning behind this decision.)

2. Nunn v State of Georgia (1846): held that
“the right of the people to keep and bear arms shall not be infringed” and that
“the right of the whole people, old and young, men, women and boys, and not
militia only, to keep and bear arms of every description, and not such merely
as are used by the militia, shall not be infringed, curtailed or broken in upon
in the smallest degree.”

3. Cockrum v State of Texas (1859): ruled
that “the right of a citizen to bear arms, in lawful defense of himself or
state, is absolute. He does not derive it from the state government. It is one
of the ‘high powers’ delegated directly to the citizen, and ‘is excepted out of
the general powers of government.’ A law cannot be passed to infringe upon or
impair it, because it is above the law, and independent of the lawmaking
power.” (Clearly, at some variance with Barron v Baltimore.)

4. 14th Amendment (1868): to address the possible
oppression of freed slaves following the civil war and to ensure that former
slaves, among other citizens, were able to Keep and Bear Arms for that purpose,
Congress passed this amendment which provides that states may not “abridge the
privileges or immunities of citizens of the United States” or “deprive any
person of life, liberty, or property, without due process of law.” (If you
can’t get there one way, try another route.)

5. The Slaughter-House Cases (1873): held
that only those “privileges and immunities” that “owe their existence” to the
US Constitution were protected; thus, the Bill of Rights didn’t apply to the
states because the Bill of Rights protected basic human rights which existed
before the ratification of the Constitution.

6. United States v Cruikshank (1876):
clarified that the Right to Keep and Bear Arms existed before the Constitution
but that the 2nd Amendment, indeed the 1st Amendment, were not protected from
infringement by the states or by private individuals. (Here the court ignored
the 14th Amendment and parroted Barron v Baltimore.)

7. Presser v Illinois (1886) and Miller v
Texas (1894): held that the 2nd Amendment didn’t directly protect against
infringement by the states.

8. People v Zerillo (Michigan, 1922): Ruled
that “the provision in the Constitution granting the right to all persons to
bear arms is a limitation upon the power of the Legislature to enact any law to
the contrary. The exercise of a right guaranteed by the Constitution cannot be
made subject to the will of the sheriff.”

9. Gitlow v New York (1925): ruled that the
14th Amendment prohibited states from violating some of the rights of citizens
without “due process” but stopped short of “incorporating” all of the Bill of
Rights at once.

10. Since Gitlow, and only on a case by case
basis, courts have held that on the strength of the 14th Amendment’s “Due
Process Clause”, the Bill of Rights is protected against state infringement. In
effect, the Bill of Rights has been “incorporated” into the Due Process Clause
vide the generally accepted Theory of Substantive Due Process. (Note: today,
the 2nd Amendment is one of the last rights in the Bill of Rights to be
incorporated.)

11. District of Columbia v Heller (2008): the
court ruled that the Cruikshank decision failed to properly weigh 14th
Amendment protections and that “the inherent right of self-defense has been
central to the Second Amendment right.”

So, though most states protect the individual right
to keep and bear arms, the McDonald v City of Chicago ensured that the
full force of the 2nd Amendment extended to all localities as well.
Particularly in those states where there are no state constitutional
safeguards, plaintiffs are especially concerned. Without 2nd Amendment rights
to keep and bear arms, gun owners are at the mercy of state legislators, social
engineering lobbyists and the like.

But, what’s behind the McDonald challenge? In
short, the Illinois state constitution states that “Subject only to the
police power, the right of the individual citizen to keep and bear arms
shall not be infringed.” By failing to “incorporate” 14th Amendment inquiry as
was required by Heller, in June 2009 the 7th Court of Appeals reaffirmed
Illinois’ power to ban handguns by relying solely—and erroneously—on the Cruikshank
decision of 1876, thereby ignoring nearly all other pertinent case law as well.

By contrast, earlier, in April 2009, a three-judge
panel of the 9th Circuit (Nordyke v King) in California concluded that
since “the Right to Keep and Bear Arms is deeply rooted in this Nation’s
history and tradition,” that this right is, therefore, “incorporated” into the
14th Amendment Due Process Clause and applies to the states.” This decision was
on hold awaiting a SCOTUS decision on the McDonald v City of Chicago case.
Thus, we had two appellate courts and two divergent views in the same year. The
earlier decision relied upon the 14th Amendment as required by Heller
and the panel opinion relied upon Cruikshank which had been overruled by
Heller. (How mortal jurists be?)

So, owing to the contradictory case law subsequent
to the US Constitution’s adoption in 1787, I opted to simplify my inquiry by
examining what our framers had to say about all this. Being the real experts,
their correspondence and debates carry considerably more weight for me than do
contemporary interpretations from either the left or the right.

First, the 2nd Amendment states that “A well-regulated
militia, being necessary to the security of a free state, the right of the
people to keep and bear arms, shall not be infringed.”

Like all things constitutional, context is
absolutely everything, and both logic and a studious level of caution dictate
that the expressed intent of the framers should always take precedence over
what might be faulty subsequent interpretation. And rather than weighing and
examining a dizzying array of contradictory interpretations, I have found
solace by relying upon an “originalist” approach to better capture the meaning
of the framers in this regard. It just seems eminently more sensible and the
least painful path to follow.

Bearing in mind Thomas Jefferson’s admonishment that
“on every question of construction let us carry ourselves back to the time when
the Constitution was adopted, recollect the spirit manifested in the debates,
and instead of trying what meaning may be squeezed out of the text, or invented
against it, conform to the probable one in which it was passed”, any
conclusions as to the framers’ intent and, thus, the meaning of the 2nd
Amendment, will be left to the objectivity and integrity of the reader.

From what I have read, the intended purpose of the
2nd Amendment was to guarantee the right of the people to keep and bear arms as
a check on the standing army and any foreign armies. To wit, Noah Webster and
Tench Coxe, the latter an ally and correspondent of James Madison, admonished
that “before a standing army can rule, the people must be disarmed; as they are
in almost every kingdom in Europe.” Similarly, George Mason warned that “the
colonies’ recent experience with Britain”, in which King George’s goal had been
“to disarm the people…was the best way to enslave them.”

Further, it appears that the overarching purpose of
the Bill of Rights, the first ten amendments of the Constitution, was to better
ensure private rights by specifically proscribing federal violations of those
rights. Thus, in short, “well-regulated militia” did not at all mean
Congressional regulation of that militia or, by extension, the regulation of
the people’s right to keep and bear arms. Also, the text of the Amendment
expressly confirms that the right to keep and bear arms is retained “by the
people”, and not the states. Important to note too is that whenever the word
“regulate” appears within the Constitution’s text, the Constitution specifies
who is to do the regulating and what is being regulated. However, in the 2nd
Amendment the term “well regulated” describes a militia—not an army reserve or
national guard--but does not define who or what regulates it. Thus, from what I
could understand, the framers intended that the people comprise an essentially
unorganized militia which may, of necessity, be organized and well regulated,
but by the people themselves.

This view is confirmed by Alexander Hamilton
(Federalist, No. 29): “…but if circumstances should at any time oblige the
government to form an army of any magnitude, that army can never be formidable
to the liberties of the people, while there is a large body of citizens, little
if at all inferior to them in discipline and use of arms, who stand ready to
defend their rights…” Thus, it also appears to have been clearly intended by
the framers that law-abiding armed citizens could collectively organize and
train and that doing so would not necessarily pose a threat to their fellow
citizens, but would, in fact, help “to ensure domestic tranquility” and
“provide for the common defence”.

But, rather than further wading through a plethora
of interesting, albeit esoteric, and often contradictory opinions let’s take a
brief look at some notable quotes of the framers themselves to better
understand their meaning and intent with respect to the 2nd Amendment. It’s
just more edifying—for me anyway:

1. “No freeman shall ever be debarred the use of
arms…” Thomas Jefferson

2. “The people have the right to bear arms for the
defense of themselves and the state…” Pennsylvania Declaration of 1776

3. “Americans have the right and advantage of being
armed—unlike citizens of other countries whose governments are afraid to trust
people with arms.” James Madison, Federalist Paper #46

4. “Arms in the hands of individual citizens may be
used at individual discretion…in private self-defense.” John Adams, 1787

5. “The right of the people to keep and bear arms
shall not be infringed. A well- regulated militia, composed of the body of the
people, trained to arms, is the best and most natural defense of a free
country…” James Madison, 1789

6. “…the ultimate authority…resides in the people
alone.” James Madison

7. “Congress have no power to disarm the militia.
Their swords, and every other terrible implement of the soldier, are the
birthright of an American. The unlimited power of the sword is not in the hands
of either the federal or state government, but, where I trust in God it will
ever remain, in the hands of the people.” Tench Coxe, 1788

8. “The militia, when properly formed, are in fact the people themselves…and include
all men capable of bearing arms.” Richard Henry Lee, 1788

9. “The Constitution shall never be construed…to
prevent the people of the United States who are peaceable citizens from keeping
and bearing arms.” Samuel Adams, 1788

10. “To preserve liberty, it is essential that the
whole body of people always possess arms, and be taught alike especially when
young, how to use them.” Richard Henry Lee, 1788

11. “The best we can hope for concerning the people
at large is that they be properly armed.” Alexander Hamilton

12. “And what country can preserve its liberties, if
its rulers are not warned from time to time that this people preserve the
spirit of resistance?” Thomas Jefferson

13. “The strongest reason for people to retain the
right to keep and bear arms is, as a last resort, to protect themselves against
tyranny in government.” Thomas Jefferson

14. “Firearms stand next in importance to the
Constitution itself. They are the American people’s liberty teeth and keystone
under independence…To ensure peace, security and happiness, the rifle and
pistol are equally indispensable…The very atmosphere of firearms everywhere
restrains evil interference…When firearms go, all goes. We need them every
hour.” George Washington

While there are also many luminaries, like Einstein,
Machiavelli, Ayn Rand, Blackstone, et. al, who celebrate the individual right
to keep and bear arms, there are notable detractors as well:

1. “Gun registration is not enough; the most
effective way of fighting crime in the United States is to outlaw the
possession of any type of firearm by the civilian population.” Janet Reno. Atty
General, 1991

2. “Our task of creating a socialist America can
only succeed when those who would resist us have been totally disarmed.” Sara
Brady, Chairman, Handgun Control, 1994

3. “…Our ultimate goal—total control of all
guns—is going to take time. The first problem is to slow down the increasing
number of handguns being produced and sold in this country. The second problem
is to get handguns registered, and the final problem is to make possession of
all handguns, and all handgun ammunition totally illegal.” Nelson Shields,
Handgun Control

4. “What good does it do to ban some guns. All guns
should be banned.” Sen. Howard Metzanbaum, 1994

FYI: Current US Code defines militia like this: “The
militia of the United States consists of all able-bodied males at least 17
years of age. The classes of the militia are (1) the organized militia, which
consists of the National Guard, and (2) the unorganized militia, which
consists of the members in the militia who are not members of the National Guard.”
Title 10, Section 311(a) of the United States Code.

And, finally, no discussion of the 2nd Amendment can
be properly wrapped up without this incisive quote from Thomas Jefferson: “False
is the idea of utility that sacrifices a thousand real advantages for one
imaginary of trifling inconvenience; that would take fire from men because it
burns, and water because one may drown in it; that has no remedy for evil,
except destruction. The laws that forbid the carrying of arms are laws of such
nature…Such laws make things worse for the assaulted and better for the
assailants; they serve rather to encourage than prevent homicides, for an
unarmed man may be attacked with greater confidence than an armed man…”

So, there you have it. Shouldn't the Framers’ understanding
of the 2nd Amendment be rendered more authoritative than the stream of
conspicuously contradictory legal opinions which followed over the years? The
age-old controversy. As said, for me the Framers’ clearly stated opinions as to
their meaning and intent necessarily hold sway.

POSTSCRIPT:

Currently under serious assault by Progressives at
both the federal and state levels, the inviolabilty of the 2nd Amendment hangs
in the balance. Pushback is widespread, and already there are hundreds of
Sheriffs who refuse to obey these unconstitutional infringements on the right
of the people to keep and bear arms. Many States have taken action to nullify
federal gun control laws. Stay tuned. This could get very messy.

About Me

Retired 2003 as Assoc. Dir. Refugee & Immigration Services in Rochester. A Vietnam veteran (Captain, Infantry/Civil Affairs/Psy Ops), spent many years in Southeast Asia, Africa, Subcontinent managing disaster relief and development projects. Am a small businessman and keenly interested in history and the Constitution. Concerned that our country is being inexorably drawn toward Socialism and that Americans are unwittingly abandoning our founding governing principles and, in the process, our liberties, way of life and economic vitality. Disillusioned with the radicalized Democratic Party, became a member of the Greece and Monroe County Republican Committees until July 2012 when I became a registered member of the Conservative Party. Although politically conservative and a constitutional originalist, I welcome all constructive opinions. Only through common-sense dialogue, objective evaluation of opposing patriotic viewpoints, and a studious adherence to the Constitution can we all learn and develop responsible positions which will benefit our Republic. Member of Rochester Conservatives, the Tea Party, American Legion, Vietnam Vets of America, Gun Owners of America, NRA.